Excite and eBay: Flirting With Disaster? Firearm sales may pose a potential litigation time bomb for eBay, Excite and perhaps other Internet auction sites

Screen Shot 2018-01-09 at 9.04.45 AM(see also: Why eBay Alone Draws Fire in Online Auction Probe)

Tactical Police Shotgun … Remington 870 Police Magnum 12-gauge shotgun with Surefire Model 618 Tactical Light. Weapon is solid black with a parkerized finish. Light is operated by a touch pad located on the pump. Shoots buck shot or slug. — For sale at Excite, Jan. 22, 1999

Searching the Internet auction sites for guns and roses could get you a grunge rock CD, flowers or, amazingly enough, a tactical police shotgun. Unfortunately, buying a firearm through eBay ( EBAY) or Excite ( XCIT) is discouragingly easy.

Depending on whether the buyer or the seller are properly licensed, it also may be illegal for the end parties if neither is properly licensed, and it may pose a potential civil liability time bomb for the sites offering guns for sale.

“Internet auctions are a secondary source of gun sales that can allow criminals to slip through the cracks,” says Will Winton, a spokesman for Handgun Control, Sarah Brady’s activist group, which has helped push through legislation for longer waiting periods and stricter background checks for gun purchasers.

“When you close the legal avenues so that criminals can’t buy weapons through legal outlets, criminals turn to gun shows and Internet auctions.” A search of auctions on eBay and Excite found a number of firearms and ammunition for sale including assault rifles and police-style combat shotguns.

The problem, according to Jeff Roehm, chief spokesman for the Bureau of Alcohol Tobacco and Firearms, is that while the advertisement of a firearm for sale is not illegal, the sale of a firearm between two unlicensed parties is a felony for the buyer or the seller — although it would not lead to criminal liability for any intermediary, such as eBay or Excite.

Roehm did say that Internet sales could become an increasingly popular place for criminals to obtain weapons, especially now that a federal task force is developing ways to crack down on gun shows. Many of the guns listed for sale on eBay are offered by people who claim to hold a federal firearms license, or FFL. Or some ads specify that the guns must be sold to an FFL licensee.

eBay would not comment on this story, including on whether it takes steps to verify whether gun sellers or buyers are properly licensed. Moreover, it is difficult for outsiders to know if the gun buyers or sellers are, in fact, properly licensed.

As for Excite, none of the firearms listings state that the seller is, or that the buyer must be, properly licensed. That may be a problem. According to lawyers familiar with this area, if an individual bought or sold a weapon without either party possessing an FFL, then eBay, Excite, or any other online site which facilitated the transaction could find themselves named as co-defendants in any personal injury or wrongful death lawsuits that arose out of that firearm’s use.

Attorneys experienced in personal injury or gun-control litigation say that if a gun purchased through these Internet systems is used to injure or kill someone, the online provider would almost certainly be named as a co-defendant. This remains an untested area of the law.

“In most of the situations you can imagine, there would be a strong case against the auction sites under a negligence per se theory,” says attorney D. Cameron Baker from San Francisco-based Morrison & Foerster. Baker is taking a leave of absence to work with the San Francisco City Attorney’s office on a gun violence project.

“I would think it’s virtually certain that any Internet site that facilitated the sale would be named in any subsequent litigation.” The auction sites at eBay, Excite and Yahoo! ( YHOO) all post their terms of use. Yahoo!, which specifically forbids the sale of firearms in its auctions, has only two antique firearms from the 19th century listed. Excite’s terms and conditions warn against “dangerous” or “illegal” products, and while it specifically mentions alcohol as a forbidden product, it does not mention firearms.

As of Friday evening (8 p.m. EST), eBay had no list of forbidden products in its terms of use, let alone a reference to firearms. None of the terms of use for any of the three services, incidentally, requests or requires a user to show any proof of actually possessing an FFL. Ironically, preventing the online sale of firearms would be a trivial task for a Web site’s software.

It could easily be accomplished by screening new listings for the relevant text, such as “tactical police shotgun,” “assault rifle,” “.44 magnum,” and so on. When contacted for comment, eBay’s VP and legal counsel Michael R. Jacobson said he was not available for comment until next week, according to his assistant.

When contacted for comment, Excite’s legal department offered a lengthy reply, paraphrased here as: “Classifieds 2000 intends to comply with all applicable rules and regulations. If we discover that a user of our service is not complying, we intend to take all commercially reasonable efforts to cease that use and prevent similar recurrences.”

Perdue helped found three technology companies in roles ranging from marketing to Chairman/CEO. Two of these sold: SmartWired, (Internet content), to private investors, Kalpana (Ethernet switching) was acquired by Cisco for stock, and the third, Lynx Real-Time Systems, is still private. He has written widely on technology for InfoWorld, PCWorld, Interactive Week, Forbes ASAP and many others. He can be reached at lperdue@ideaworx.com. He does not hold any positions in the companies discussed in this column. Under no circumstances does the information in this column represent a recommendation to buy or sell stocks.

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